Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I thank all the Deputies for their incredibly heartfelt contributions to this debate. The debate starkly demonstrates the sensitivities and complexities around this particular issue. All Deputies have tried to convey the sense they have received from the emails, calls and texts and from the people they know personally. There is a real anxiety around access to information for those who were directly involved in mother and baby homes and in other institutional settings.

The legislation before us tonight is a unique opportunity to protect invaluable information for former residents of mother and baby homes. Without this legislation, that valuable information will be lost when the case of the database will be put beyond our reach and sealed in the archive. This is at the heart of what we are discussing tonight and of what the Government is doing by seeking to pass this legislation. I have listened to all the individual contributions, as I did in the Seanad and I thank the Deputies for highlighting the incredible wrongs that have been done to women and their children in our past. A number of Deputies brought home that this is not just a historical issue but that there is a lived experience that these women and children have that is raw today and every single day. I want to get this right for the people who have survived the mother and baby homes. Collectively, we share that duty and a responsibility to get this issue right. Given our shameful history when it comes to how survivors were treated in the past, I can completely understand the need for clarification and reassurance around this legislation. I wish to emphasise that this legislation is about making information available to people; it is not about sealing information away.

I will take this opportunity to clarify some of the measures proposed within this Bill. The Bill, as presented, seeks to preserve invaluable information now and into the future. It seeks to ensure that information is not destroyed and that relevant information can be made available for information and tracing purposes in line with current and future law. I am on the record of saying this and I will say again that I understand that we do not have sufficient information on tracing legislation in this country and that much of the trauma that has been created by engagement with Tusla has come about because that information and tracing legislation does not exist. The previous Minister, former Deputy Zappone, went a long way towards trying to introduce that information and tracing legislation but it did not get through. I want to do that. I want to finish that work and I want the help of the entire House to do that.

This Bill is necessary to resolve the serious legal and practical issues that were raised by the commission in finalising its records in accordance with the Commissions of Investigation Act 2004. The intent of the legislation is to safeguard the records of the intensive five-year investigation process that the commission has undertaken, including the goal to protect and keep that unique database which it has developed. Earlier this year, the commission communicated to my Department that it had created a database, tracking who was in the main mother and baby homes and the related institutions. The commission had copied many records from the mother and baby homes in the context of its investigations. In every one of these cases, the personal details of the women and children who were on those records have been inputted into this database. These details included their entry into the mother and baby homes - as we know sometimes women moved around a number of these homes - as well as the exit of their children from those homes. The commission did not feel it had a legal basis to transfer that system and it felt it would be compelled by law to redact the valuable information we are trying to preserve. This Bill allows the database and the related records to be transferred to Tusla and it prevents that information from being effectively destroyed. It will allow access to the information under the existing information and tracing laws that are in place and which we all accept are inadequate. It will also protect future access to that information when we legislate for better information and tracing services. We have heard the stories of children who have met their mothers days or even hours before death. Having that database there and having it usable will help to make those linkages between parents and their children. It will help those linkages to be made in a much easier way than can currently be done.

Some Deputies raised concerns that it is proposed to destroy records. References to destruction solely come from the position that the commission would, without this legislation, feel obligated to redact personal information from the database, therefore effectively destroying its usefulness. A database is a list of names and if the commission feels the need to redact those names, as it did, that database is effectively destroyed. The Bill seeks to stop that. It is clearly stated within the legislation I am bringing forward that the database must be unredacted to make sure it is usable. Also, the database will be transferred to Tusla so it does not go into the commission's archive once the commission has brought forward its final report.

When the Government decided to establish the inquiry into mother and baby homes, the model it chose was a commission of investigation under the 2004 Act. That decision, which was endorsed by a previous Oireachtas and Dáil, had indelible consequences for the format of the investigation that was to be conducted for the mode of engagement with the commission by third parties who gave evidence before it and for the rights of those parties. It also had consequences for the commission's report and the archive of same. This Bill has to be read in the context of the restrictions that are placed on a commission of investigation process that stem from the 2004 Act. The effects of the confidentiality provisions woven into the 2004 Act are that the commission's archive of records must be deposited with the Minister in a sealed form and must remain so for a period of 30 years, pending transfer to the National Archives. While the records must transfer in their complete and unredacted form, the anonymity of those who provided testimony is maintained by virtue of this requirement for the records to remain sealed. The commission will, in the normal course, identify individuals and organisations as it deems necessary when reporting its findings. Notably, the Act provides for appropriate due process considerations in respect of those who may be identifiable from the report.

For the avoidance of doubt, it is important to clarify that the commission is not in possession of any original State records and no original records will be sealed by these arrangements.

State records remain in the possession of the relevant statutory bodies, and public access is regulated in accordance with existing laws. Any proposal to change the legislative arrangements under which evidence is provided to the commission must be carefully considered and must address the privacy rights and legitimate expectations of third parties who engage with the commission. That said, I propose, as I outlined in my opening statement, to table a number of amendments which I believe will address some of the concerns raised about the Bill.

As for the issue of the application of the 30-year rule, an application which stems from the 2004 Act, I have heard the real concerns from survivor groups about how this impacts their ability to access large pieces of information on their own history. Today, as I said in my earlier statement, I am committing to examine further this issue, particularly as it relates to access to personal information which, under the existing law, namely, the 2004 Act, will be sealed in that archive. I will engage on this issue with the Attorney General to see whether legislative solutions can be brought forward. I hope to engage also with the Oireachtas Joint Committee on Children, Disability, Equality and Integration, if it is in agreement, and to bring in not only the experts, who I accept have different have views on this, but also survivors so we can understand the real impact the application of the 30-year rule is having on them.

I have heard the criticism of Tusla that Deputies have made, reflecting what they have heard from survivors. The Bill will not expand Tusla's role. Section 3 of the Bill, dealing with Tusla, is declaratory only and allows Tusla to use the database only for its existing information and tracing powers, which we accept are inadequate. In the case of the majority of the records and copies of records being transferred to Tusla, the originals are already in Tusla's possession. The commission went in, copied the Tusla records and used those records as a base for the database. However, the digitised and indexed records will be an enabler for Tusla's current services in this area, even though, as we have acknowledged, no new right of information is provided by this legislation.

I appreciate that a lot of criticisms have been levelled at Tusla and that there is very genuine frustration on the part of children when they look for records relating to their birth parents. I believe a very significant part of this is due to the fact that the law as it stands on information and tracing is simply inadequate. In many cases that brick wall is not put up by any choice on the part of Tusla but through the inadequate legislation that exists at present, legislation that I am committed to dealing with and which, as an Oireachtas, I think everyone here agrees is an issue we need to deal with.

Some Deputies have mentioned alternative bodies. In particular, the Adoption Authority of Ireland was mentioned. It is our view in the Department that if we were to transfer this database to the Adoption Authority of Ireland, two separate statutory bodies would hold the same records, with Tusla holding the originals and the AAI holding copies. The resulting duplication and the potential for confusion would not benefit anybody.

A number of Deputies asked about extending the timeframe for the commission. In the Leas-Cheann Comhairle's contribution she set out in detail the timeframe of previous extensions that had been sought by the commission in respect of the interim reports. The current timeframe of 30 October was granted by the Government in the context of the sixth interim report submitted by the commission. Under the 2004 Act the timeframe can only be amended when I as Minister receive a request for an extension from the commission that is grounded in the interim report and when that request is agreed to by Government decision. As I said, in all my engagements with the commission it has at no time indicated that it will seek an extension grounded in an interim report. The commission says it is ready to submit this report on 30 October and it wishes to do so on that date.

I recognise the importance to adopted people and others impacted by birth-family separation of having access to information related to their original identity and their family history, including their medical history. I am committed to bringing forward information tracing legislation which will deal with that issue. At that stage we will have to discuss which is the correct statutory body to undertake the information and tracing process in the long term. I hear the concerns that many Deputies here feel. Speaking for survivors, the Deputies feel Tusla is not the right body to do this. There is no final decision on who will implement the new information and tracing process. There is no final decision on who will be the long-term holder of the database. We are simply giving it to Tusla in the interim to hold at this point.

Turning to the question of access to records which transfer and access to personal information held in these records when the records are transferred to Tusla, the records will continue to be regulated by freedom of information legislation, the GDPR and data protection legislation. That is really important. All those existing statutory provisions will apply to the database when it transfers to Tusla. As for the GDPR and its interaction with the Commissions of Investigation Act, I have been advised that access to the records is expressly restricted by that Act. I have gone back and forth with the Attorney General's office on a number of occasions on this point. I have been advised that the legislation requires that the records be sealed for a 30-year period prior to their transfer to the National Archives, at which time access considerations are governed by the National Archives Act and my Department, when we get the sealed archive, will have no access to the sealed records for that 30-year period. The advice that has been given to me is that the right to access personal data under Article 15 of the GDPR is expressly prohibited by section 39 of the Commissions of Investigation Act. The 2004 Act does so in accordance with Article 24 of the GDPR by expressly stating that the restriction is justified as it is necessary and proportionate to safeguard the effective operation of commissions and the future co-operation of witnesses. That is the advice I have received, but I absolutely accept there are other significant and different interpretations of the interaction with the GDPR. A number of Deputies have brought forward those different interpretations today. Again, I commit that I will engage with the Attorney General and, with the agreement of the committee, I hope, engage with the committee, bring in those experts and see how we might bridge that situation and address the very clear difference in legal opinion in a way that vindicates survivors' rights to their personal information.

Our duty to the women and children who passed through these institutions and to their families is to ensure their lived experiences are shared, acknowledged and understood. The commission is due to submit its final report and stand dissolved in law on 30 October. This Bill needs to be passed and signed into law prior to the commission's dissolution on that date. I do not believe it is feasible to delay or postpone this legislation within the short timeframe available, and it is my absolute belief that failure to act will result in the database being put beyond reach, with the valuable role it can provide in information and tracing being lost. The legislation I am bringing forward seeks to address issues that have emerged in respect of the commission's records. Everything we have provided for in the Bill is there for a reason, and no future opportunity for access to this information will be lost by virtue of the Bill coming into effect by being made law. Its purpose is to preserve information, including the database, for future use and, when we bring in better legislation on information and tracing, enhance its use even further. I therefore ask the House to support the Bill so we can safeguard and protect these records for the real benefits they can provide.

We can then go on to work together to deliver that information and tracing legislation which is absolutely essential. It is a missing piece in our legislative framework and has been identified as such by Deputies. The House has my commitment that I will work and do whatever I can to address the issues about the archive and access to personal information via general data protection regulation, GDPR, by engaging with the Attorney General, survivors, survivors' groups and with those legal academics who have represented their views and an alternative view regarding those issues on access to information. The House has my firm commitment on that point.

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